CARLOS ALBERTO SALAZAR v. THE STATE OF TEXAS

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Court of Appeals of Texas, Dallas.

CARLOS ALBERTO SALAZAR, Appellant v. THE STATE OF TEXAS, Appellee

No. 05–10–00240–CR

Decided: August 26, 2011

Before Justices Bridges, Lang–Miers, and Murphy

OPINION

Opinion By Justice Bridges

Carlos Alberto Salazar appeals his murder conviction.   A jury convicted appellant and assessed punishment at confinement for life and a $10,000 fine.   In five issues, appellant argues the trial court improperly charged the jury on the culpable mental state and abused its discretion in denying his motion for mistrial and admitting evidence of a tattoo on appellant's hand, appellant's possible gang affiliation, and details of appellant's gang affiliation.   We affirm the trial court's judgment.

Because appellant does not challenge the sufficiency of the evidence to support his conviction, only a brief recitation of the facts is necessary.   Appellant was indicted for the offense of murder.   The indictment alleged appellant caused the death of Jimmy Moreno by shooting him with a firearm.   At trial, Josue Hernandez testified he was with Moreno and some other friends on the night of the shooting at a gas station.   Appellant and two companions approached and appellant asked Hernandez “are you blasting?”  “One of the people” with them started “throwing up a star, Tango Blast star.”   Hernandez testified Tango Blast was a prison gang, and he understood appellant was asking if Hernandez was in the gang.   Hernandez said no, but he had family members and friends that were.   Appellant asked again if Hernandez was “blasting,” and Hernandez told him no a second time.   Appellant said, “already that's what's up.”   Hernandez thought appellant appeared confrontational at first, but then he shook Hernandez's hand and acted friendly and “things were cool at that point.”

Hernandez heard Moreno calling his name and turned around and saw Moreno arguing with another man.   Hernandez went over to Moreno and a brief fight ensued between Hernandez and the other man.   More people came up and joined in the fighting, including appellant, until a police car pulled up, and the fight broke up.   Hernandez approached his vehicle, and Moreno approached the passenger side when he yelled out, “Sam is getting jumped.”   Hernandez saw Moreno run around the front of the vehicle and saw appellant pull a gun out of his pocket and shoot Moreno.   A jury subsequently convicted appellant of murder, and this appeal followed.

In his first issue, appellant argues the trial court improperly charged the jury on the culpable mental state required for a murder conviction.   Specifically, appellant complains the jury charge improperly defined intent as follows:  “A person acts intentionally, or with intent, with respect to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result.”  (Emphasis added).   Appellant objected to the definition and requested the trial court to “erase the part that says ‘engage in the conduct or’ and to just put ‘it is his conscious desire’—‘objective or desire to cause the result.’ ”   The trial court denied appellant's request.   The State concedes the abstract definition should have stated:  “A person acts intentionally with respect to a result of his conduct when it is his conscious objective or desire to cause the result.”  Cook v. State, 884 S.W.2d 485, 491 (Tex.Crim.App.1994) (murder is a “result of conduct” offense;  it is error for trial judge not to limit definitions of culpable mental states as they relate to conduct elements involved in particular offense).

Because error occurred, we must next decide what harm, if any, has resulted from the error.  Hughes v. State, 897 S.W.2d 285, 296 (Tex.Crim.App.1994).   When a defendant properly objected to the charge, the applicable statutory standard is whether the error appearing from the record was calculated to injure the rights of the defendant, or in other words, whether there was “some harm.”  Trevino v. State, 100 S.W.3d 232, 242 (Tex.Crim.App.2003).   The actual degree of harm must be assessed in light of the entire jury charge, the state of the evidence including the contested issues and weight of probative evidence, the argument of counsel, and any other relevant information revealed by the record as a whole.  Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1984).

The nature of the error lay in including in the jury charge a definition of “intentionally” that included the objected-to nature of the conduct language when the offense of murder is a “result of conduct” offense.   See Roberts v. State, 273 S.W.3d 322, 329 (Tex.Crim.App.2008).   The danger is that the jury may have found appellant guilty merely for intentionally engaging in the conduct without having found that appellant intended to cause the result, namely the death of Moreno.   We note the definition of “knowingly” correctly omitted nature of the conduct language and provided:  “A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.”

We note that the jury charge instructed the jury that, “Our law provides that a person commits murder if he intentionally or knowingly causes the death of an individual.”   This instruction properly limited the culpable mental states of intentionally and knowingly to the result of the offense, causing the death of Moreno.

The application portion of the jury charge provided in relevant part as follows:

Now, bearing in mind the foregoing instructions, if you find and believe from the evidence beyond a reasonable doubt that on or about the 16 th day of February, A.D., 2009, in the County of Dallas and State of Texas, the Defendant, Carlos Alberto Salazar, did unlawfully then and there intentionally or knowingly cause the death of Jimmy Moreno, an individual, hereinafter called deceased, by shooting the deceased with a firearm, a deadly weapon, you will find the defendant guilty of the offense of murder and so say by your verdict.

A rational reading of the application paragraph would lead the jury to find that the culpable mental state of appellant, intentionally and knowingly, applied to the result of the conduct, causing the death of Moreno.   The application paragraph limited the definitions of intentionally and knowingly because they directly modify the phrase “cause the death of Jimmy Moreno.”   The jury could not rationally have convicted appellant without finding that he intended the result or knew what the result would be.

The evidence presented at trial included Hernandez's testimony that he saw appellant pull a gun out of his pocket and shoot Moreno.   Appellant, driving a white Grand Marquis, fled the scene of the shooting and was pursued by police.   Appellant crashed the car, causing the air bags to deploy.   Police recovered from appellant's car a .32 caliber handgun with one bullet in the chamber and one in the magazine.   Forensic comparison showed two bullets recovered from Moreno's body matched the handgun found in appellant's car.

A review of the record reveals no attempt by the State to argue that the jury could find appellant guilty of intending the conduct but not the result, death.   During closing arguments, the State argued that the evidence showed appellant had the intent to cause Moreno's death.   Appellant's counsel reiterated that the jury had to find that the State had carried its burden of showing beyond a reasonable doubt that appellant had knowingly and intentionally caused Moreno's death.

Based on our discussion above, we conclude appellant has failed to show he suffered any actual harm from the erroneous inclusion of nature of conduct language in the jury charge definition of intentionally.   We overrule appellant's first issue.

In his second issue, appellant argues the trial court abused its discretion in admitting evidence of a tattoo on appellant's hand.   Specifically, appellant complains of the admission of evidence he had “187” tattooed on his right hand.   A ruling admitting or excluding evidence is subject to an abuse of discretion review.  Cameron v. State, 241 S.W.3d 15, 19 (Tex.Crim.App.2007).   Under the abuse of discretion standard, the appellate court must uphold the trial court's ruling so long as it is within the zone of reasonable disagreement.  Robbins v. State, 88 S.W.3d 256, 260 (Tex.Crim.App.2002);  see also Khoshayand v. State, 179 S.W.3d 779, 783 (Tex.App.—Dallas 2005, no pet.).

Texas rule of evidence 801(e)(2)(A) provides that a statement is not hearsay if it is offered against a party and is the party's own statement in either an individual or representative capacity.   See Tex.R. Evid. 801(e)(2)(A).   A “statement” is defined as (1) an oral or written expression or (2) nonverbal conduct of a person, if it is intended by the person as a substitute for verbal expression.  Tex.R. Evid. 801(a).  Texas rule of evidence 401 defines “relevance” as having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable.  Tex.R. Evid. 401.   Even if evidence is relevant, a trial court may exclude it if its probative value is substantially outweighed by the needless presentation of cumulative, misleading, confusing, or unfairly prejudicial evidence.  Tex.R. Evid. 403.

Dallas police officer Germaine Walls testified he saw appellant at the police station on the night of the shooting, and appellant did not have “187” tattooed on his hand at that time.   Walls testified that, based on his training and experience, “187” represents the California penal code section for murder, and a person puts such a tattoo on his body to proclaim that he has committed murder.1  Additionally, Walls testified “it's been used in quite a few rap songs to advertise the fact that they have committed murder.”   At trial, appellant objected to this testimony and argued there was no dispute appellant killed someone and that the tattoo was more prejudicial than probative.   The prosecutor argued the “187” tattoo, clearly visible on appellant's hand, was admissible as an admission by a party opponent.   Further, the prosecutor argued the tattoo showed appellant's state of mind and disproved his theory of self-defense because he was proud of the murder.   The trial court overruled appellant's objection.

The record shows appellant did not have a “187” tattoo on the night of the shooting, and the tattoo was placed on him after he was in jail in connection with the underlying murder charge.   The fact that appellant got a tattoo marking him as a murderer goes to show his state of mind at the time of the shooting and clarifies the circumstances surrounding the shooting.   It is also clear from the placement of this tattoo on his hand that it was an open and obvious statement that he wanted everyone to see.   This evidence directly contradicts appellant's defensive theory that he acted in self defense and was not likely to impress the jury in some irrational but nevertheless indelible way.   See Montgomery v. State, 810 S.W.2d 372, 389–90 (Tex.Crim.App.1991).   We conclude the trial court did not abuse its discretion in admitting evidence of the “187” tattoo as a statement that appellant committed murder.   See Tex.R. Evid. 801(e)(2)(A).   We overrule appellant's second issue.

In his third and fourth issues, appellant argues the trial court abused its discretion in admitting evidence of appellant's possible gang affiliation and allowing the prosecutor to elicit details of appellant's possible gang affiliation at the guilt innocence stage of trial.   Specifically, appellant complains of the admission of evidence of his possible affiliation with Tango Blast, a “prison gang.”   Appellant's objection to the evidence was that it was hearsay and more prejudicial than probative.

Rule 404(b) prohibits the admission of extraneous-offense evidence to prove an individual's character or to show action in conformity with that character.   Tex.R. Evid. 404(b).  This limitation is not based on legal relevance;  rather, the evidence is inherently prejudicial, has a tendency to confuse the issues, and forces the accused to defend himself against uncharged crimes in addition to the charged offense.  Daggett v. State, 187 S.W.3d 444, 451 (Tex.Crim.App.2005);  Albrecht v. State, 486 S.W.2d 97, 100 (Tex.Crim.App.1972).   Yet extraneous-offense evidence may be admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.  Tex.R. Evid. 404(b).  Rebuttal of a defensive theory is also a permissible purpose under rule 404(b).  See Moses v. State, 105 S.W.3d 622, 626 (Tex.Crim.App.2003);  Albrecht, 486 S.W.2d at 101.

Under article 38.36(a) of the code of criminal procedure, in all prosecutions for murder, the state or the defendant shall be permitted to offer testimony as to all relevant facts and circumstances surrounding the killing and the previous relationship existing between the accused and the deceased, together with all relevant facts and circumstances going to show the condition of the mind of the accused at the time of the offense.  Tex.Code Crim. Proc. Ann. Art. 38.36(a) (West 2005).   However, this evidence must still meet the admissibility requirements of rule of evidence 403.  Jackson, 160 S.W.3d 568, 574(Tex.Crim.App.2005).   Evidence admissible under article 38.36(a) may be excluded under rule 403 if the probative value of the evidence is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.  Tex.R. Evid. 403.   Even if evidence is relevant to an element of the offense, the trial court must determine whether the evidence is admissible.  Jackson, 160 S.W.3d at 574.

Here, the evidence showed appellant approached Hernandez, Moreno, and some other friends and asked Hernandez “are you blasting?”   One of appellant's companions started “throwing up a star, a Tango Blast star.”   Hernandez testified Tango Blast was a prison gang, and he understood appellant was asking if Hernandez was in the gang.   Hernandez said no, but he had family members and friends who were.   Appellant asked a second time if Hernandez was “blasting,” and Hernandez denied it a second time.   Hernandez initially felt threatened by appellant's approach, but appellant later shook Hernandez' hand and acted friendly.   Hernandez heard Moreno calling his name and saw Moreno arguing with another man.   A fistfight broke out soon thereafter Hernandez and the other man and grew to include other people who joined in, one of which was appellant.

The evidence that appellant initially approached Hernandez and asked more than once if he was a Tango Blast gang member showed the context in which the encounter began that resulted in appellant shooting Moreno.   The evidence of appellant's possible gang affiliation showed the initial confrontational nature of appellant's questioning of Hernandez regarding his gang affiliation and helped explain appellant's motivation in participating in a fistfight and shooting Moreno.   Under these circumstances, we conclude the trial court did not abuse its discretion in admitting the evidence of appellant's possible gang affiliation, and its probative value was not substantially outweighed by the danger of unfair prejudice.   See Tex.R. Evid. 403, 404(b);  Jackson, 160 S.W.3d at 574.   We overrule appellant's third and fourth issues.

In his fifth issue, appellant argues the trial court abused its discretion in denying his motion for a mistrial when so many gang references were introduced as to deny him a fair trial.   We review a trial court's denial of a motion for mistrial under an abuse of discretion standard.  Coble v. State, 330 S.W.3d 253, 292 (Tex.Crim.App.2010).   We uphold the trial court's ruling if it was within the zone of reasonable disagreement.  Id. A mistrial is a device used to halt trial proceedings when the error is so prejudicial that expenditure of further time and expense would be wasteful and futile.  Ladd v. State, 3 S.W.3d 547, 567 (Tex.Crim.App.1999).   We have already concluded the trial court did not abuse its discretion in admitting evidence of appellant's possible gang affiliation.   Accordingly, we cannot conclude the trial court abused its discretion in denying appellant's motion for mistrial on the basis the evidence of possible gang affiliation denied him a fair trial.   See Coble, 330 S.W.3d at 292.   We overrule appellant's fifth issue.

We affirm the trial court's judgment.

FOOTNOTES

FN1. See Saunders v. State, No. 03–04–00401–CR, 2008 WL 1990010, at *4 (Tex.App.—Austin May 8, 20008, no pet.) (appellant's tattoo of “187” a reference to California Penal code statute for murder);  Barnes v. State, No. 05–96–00863–CR, 1998 WL 79880, at *7 (Tex.App.—Dallas February 20, 1998, pet. ref'd) (appellant's tattoo that said “187 skills” was “a gang term for murder, relating to the California Penal Code chapter for murder.”)..  FN1. See Saunders v. State, No. 03–04–00401–CR, 2008 WL 1990010, at *4 (Tex.App.—Austin May 8, 20008, no pet.) (appellant's tattoo of “187” a reference to California Penal code statute for murder);  Barnes v. State, No. 05–96–00863–CR, 1998 WL 79880, at *7 (Tex.App.—Dallas February 20, 1998, pet. ref'd) (appellant's tattoo that said “187 skills” was “a gang term for murder, relating to the California Penal Code chapter for murder.”).

DAVID L. BRIDGES JUSTICE

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